PEOPLE v. OWENS

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Wallace OWENS, Defendant-Appellant.

Decided: April 17, 2001

SULLIVAN, P.J., ANDRIAS, ELLERIN, RUBIN and BUCKLEY, JJ. Nisha M. Desai, for Respondent. Moira E. Casey, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Denis Boyle, J. at suppression hearing;  Richard Price, J. at jury trial and sentence), rendered February 6, 1997, convicting defendant of burglary in the second degree, criminal possession of stolen property in the third degree and criminal possession of a weapon in the fourth degree, and sentencing him, as a second felony offender, to concurrent terms of 71/212 to 15 years, 31/212 to 7 years and 1 year, respectively, unanimously affirmed.

 Defendant's suppression motion was properly denied.   The prompt, on-the-scene showup was not rendered unduly suggestive by the circumstances that defendant was in handcuffs while guarded by police and accompanied by his codefendant, or by the witness's awareness of the obvious fact that the purpose of the showup was to view a possible suspect (see, People v. Duuvon, 77 N.Y.2d 541, 569 N.Y.S.2d 346, 571 N.E.2d 654;  People v. Smith, 271 A.D.2d 332, 707 N.Y.S.2d 154, lv. denied 95 N.Y.2d 871, 715 N.Y.S.2d 226, 738 N.E.2d 374).

The verdict as to each count was based on legally sufficient evidence.

 The court properly denied defendant's challenges for cause to various prospective jurors.   The prospective jurors did not express any doubts about their ability to be fair and each juror's responses established his or her impartiality (see, People v. Johnson, 94 N.Y.2d 600, 709 N.Y.S.2d 134, 730 N.E.2d 932).

 The court's adverse inference instruction was sufficient to prevent any prejudice from the erasure of a 911 tape (see, People v. Martinez, 71 N.Y.2d 937, 940, 528 N.Y.S.2d 813, 524 N.E.2d 134).   Moreover, defendant was given a copy of the sprint report of the tape.